From the Desk of Kyle Riley: Negligence principles hold that individuals have a duty to the public to refrain from engaging in activities that would constitute an unreasonable danger to others. Some states hold that passengers owe a duty to the public to refrain from distracting the driver of a vehicle. In the age of smart phones, constant emails and text messages, the next inquiry is whether an individual in a remote location can be held liable for distracting a driver by sending them an electronic message while the recipient is driving. A New Jersey court recently addressed the issue, and provides insight into the direction in which the law in other states, including your own, may be headed.
Claims Pointer: A New Jersey court recently held that a third party who texts the driver of a vehicle and knows or has special reason to know the recipient will be distracted and read the text while driving, can be held liable for injuries caused if the recipient is subsequently involved in a collision. Insurers should be aware that claimants might be successful in attempting to hold the senders of electronic messages responsible for accidents caused by the distraction of texts or emails. Those with happy thumbs should think twice before sending a text to recipients whom the texter knows will read the text while driving.
Kubert v. Best, — A.3d —-, 2013 WL 4512313 (N.J.Super.A.D. 2013).
Linda and David Kubert (the “Kuberts”) were injured when Kyle Best (“Best”) crossed the double center line of the roadway, into their lane of travel. The Kuberts were riding their motorcycle at the time; and both Linda and David were seriously injured as a result of the accident. The Kuberts settled their claim with Best. However, they sought to hold his friend, Shannon Colonna (“Colonna”), liable for their injuries because she texted him immediately before the accident.
Colonna and Best were romantically involved, and had a habit of texting each other multiple times in any given day. Colonna admitted that she regularly sent over 100 texts per day, and she generally did not pay attention to whether the recipient of the text was driving.
On the day of the accident, both teenagers had texted each other 62 times. They also had lunch together and hung out Best’s home before Best had to go to work. Colonna sent a text message to Best while he was at work, and Best responded to the text one minute after ending his shift. There were texts exchanged between Best and Colonna while Best was driving home. The last text occurred 17 seconds before Best called 911 and there were inferences suggesting that the text was sent at or near the time that Best crossed over the center line.
Colonna moved for summary judgment because she was not present at the scene, she did not know Best was driving at the time of the text and even if she had, she had no duty to avoid texting Best. The trial court dismissed the claims against Colonna, and the Kuberts appealed. On appeal, the Kuberts argued that Colonna could be found liable for their injuries if the jury found she was the proximate cause of the accident, that she had an independent duty to avoid texting one who was driving and that a jury could infer she knew Best was driving home from his job when she texted him.
The Appellate Division held that in order to establish liability on the part of a third party, the plaintiff must show that the sender of a text message knew or had special reason to know that a recipient would read the message while driving, and as a result, be distracted from the road. Special knowledge that the driver would read the text while driving may be deduced from past experience. The court also described the passenger’s limited duty as analogous to the duty that a passenger of a vehicle has to the public to avoid activity that would distract the driver of the vehicle from the road.
The court explained that it is foreseeable that a driver who is actually distracted by a text message might cause an accident and that serious injuries or death could result from such an accident. It is not, however, foreseeable that every recipient of a text message who is driving will be distracted by the text or neglect his obligation to obey the law. The court further noted that under most circumstances a sender of a text should be able to assume a driver will only read the text when it is safe to do so.
In rejecting the plaintiffs’ argument that Colonna should be held liable, the court found that none of the evidence presented established that she was aware that Best would read her texts as he drove or that Colonna knew that Best was driving at the time that the texts were sent. It was insufficient evidence that the parties texted multiple times throughout the day, and that Colonna sent one text while Best was driving.
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